Control of the prerogative power – post – GCHQ Flashcards
What is the general approach to JR of prerogative powers?
- The courts will apply varying degrees of `intensity’ of review in cases where the claimant alleges unlawful exercise of the prerogative.
- The higher the level of policy (e.g. in relation to defence of the realm), the lower the intensity of review.
- The courts may that the exercise of a particular prerogative is `justiciable’ i.e. open to their review, but nevertheless that the government is best placed to make policy decisions within that particular area.
In relation to prerogative of mercy, is full pardons and conditional pardons beyond the courts remit?
Full pardons is an issue of higher policy. Conditional pardons is not seen to be beyond the limits of the courts remit.
What is the position in relation to foreign policy and diplomacy?
Matters touching on the diplomatic relationship between the UK and other states is clearly a matter of high policy. However, such challenges have been accepted by the administrative court. Nevertheless, the intensity of the review has been at the lower end of the spectrum.
An example is in a case involving the legitimate expectation of diplomatic assistance. The court accepted this challenge but did find in favour of the Foreign Office.
What is the position in relation to decisions to take military action?
The courts are likely to consider this higher policy and non-justiciable.
What is the position in relation to combat immunity?
The Supreme Court held that the doctrine of combat immunity (which excludes liability for negligence in relation to military combat) should be construed narrowly. The claimants, who represented UK soldiers killed on active service in Iraq, claimed that the Ministry of Defence had been negligent in the provision of equipment and training. The court recognised that decisions taken by military commanders in relation to military engagements should not be subject to JR, because of the danger of ‘judicialising warfare’. It did not, however, accept the Ministry’s arguments that immunity should apply in relation to failings that were remote from the pressures and uncertainties of the battlefield.
What is the position in relation to membership of armed forces?
This was a challenge to the MoD’s policy at that time of not allowing homosexuals to be employed in the armed forces. Smith and three others had been summarily dismissed from the armed services for no other reason than their sexuality. They claimed that the decision to do so was unreasonable/ irrational (which, as you will see later in this module, is a ground of JR which presents a particularly high threshold for challengers). In the Court of Appeal, Sir Thomas Bingham MR acknowledged the MOD’s expertise and ‘competence’ but clearly considered that the court had a role to play in a matter that had a profound effect on the livelihood and employment rights of the four individuals who had been dismissed.
What is the status in relation to colonial governance?
Prerogative power of colonial governance enjoys no generic immunity from judicial review.
This has been subject to much scrutiny.
